ACCOUNTABILITY FOR THE ADMINISTRATION AND ORGANISATION OF THE JUDICIARY
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ACCOUNTABILITY FOR THE ADMINISTRATION AND ORGANISATION
OF THE JUDICIARY
How Should the Judiciary be Accountable for their Work beyond the Courtroom?
A discussion by
Judge Jan-Marie Doogue, Chief District Court Judge of New Zealand
Judge Colin Doherty, Chair of the District Courts of New Zealand’s IFCE Committee
Jeff Simpson, Legal Research Counsel to the Chief District Court Judge
Summary
The judiciary is, as an institution, accountable to society to administer and organise itself so as to
provide the resolution of disputes in a way that is not only fair, just and in accordance with the law,
but also efficient, cost effective, and with a high degree of professionalism and skill. Judicial
independence means that Judges cannot be accountable in a sacrificial sense, in the way that public
servants would be accountable to their minister. However, the judiciary is a branch of government
which makes decisions in individual cases which determine and uphold peoples’ rights, and makes
administrative decisions at the Head of Bench level which have a significant impact on the efficiency
and quality of the justice process. Growing attention is being paid to these administrative decisions
and to the organisation of the judiciary as an institution. In a modern democracy, Judges must
therefore be accountable to society in an explanatory way for their organisation and administration.
This accountability should mirror judicial accountability in respect of judicial decisions, where
reasons must be provided which the public can scrutinise and comment on, while preserving judicial
independence. To withstand scrutiny, it is imperative that the efforts of the judiciary are fully
supported and resourced by the executive, particularly in an institutional model where the judiciary
has no independent budgetary or resource control. The appropriate level of detail to be divulged
will depend on the nature of the administrative information. It is important that sufficient
information be available to the public so that the public confidence in the judiciary as a well-
organised, professional, efficient and independent institution is not misplaced. Without that
confidence, the legitimacy of courts will be undermined. This is in concert with the democratic
principle that no branch of government should have power without accountability. In recognition of
this accountability, a minimum set of performance measurement areas for the judicial
administration is posed for discussion.2
I. Why the Judiciary Must be Accountable for their Administration and Organisation
1. Traditional Judicial Independence and Accountability
Judicial independence is a fundamental and essential part of modern democracy. The constituent
elements of judicial independence are well known. They consist of both protections and restrictions.
Protections include tenure of office, legislation prohibiting decrease in salary, and inability to be
sanctioned apart from removal in cases of serious misconduct. Restrictions include laws or
conventions prohibiting Judges from determining cases in which they have, or may appear to have, a
pecuniary or non-pecuniary interest, inability to hold positions and offices inconsistent with judicial
office, and restrictions on public comment on cases or issues which have a political element.
While these elements of judicial independence are well known, their justification is less understood.
Judicial independence is not a private right of Judges designed to protect them personally. It is a
private right of citizens, who all have a vested interest in having a neutral, independent court system
to protect their fundamental rights from interference by the state and others. 1 Modern democracy
is founded on the rule of law, whereby every action of both citizen and government is subject to the
law. Judicial independence gives this precept effect, by removing the judiciary from the sphere of
influence projected by the executive and legislative arms of government. Executive action is kept
within its legal bounds and individual rights are upheld because Judges can make decisions, even
manifestly unpopular ones, without fear of losing their position or other adverse consequences. This
is the separation of powers in operation, with each of the legislative, executive and judicial arms of
government acting as a check and balance on the other.
When accepting judicial office in New Zealand, Judges swear an oath that they will do right to all
manner of people according to the laws of New Zealand “without fear or favour, affection or ill
will.” 2 Judicial independence enables Judges to execute this oath and uphold the law by removing
factors which may influence their decision. Judges can act with complete impartiality when there is
no threat of penalty or offer of benefit for them personally. The public must have confidence that
the judiciary will act with such impartiality in every decision before them. That confidence is critical,
as the legitimacy of the courts depends upon public acceptance of them as the final and
authoritative arbiter of disputes. Such confidence, and thus legitimacy, is lost not only if Judges fail
1
Justice Murray Gleeson, Chief Justice of Australia “Public Confidence in the Judiciary” (Judicial Conference of
Australia, Launceston, 2002). For this reason, judicial independence is expressed as an individual right in both
domestic and international human rights documents. See New Zealand Bill of Rights Act 1990, s 25(a);
European Convention for the Protection of Human Rights and Fundamental Freedoms ETS 5 (opened for
signature 4 November 1950, entered into force 3 September 1953), art 6; Universal Declaration of Human
Rights GA Res 217 A (III) (1948), art 10. Judicial independence is also recognised in various international
documents including: United Nations Basic Principles on the Independence of the Judiciary (1985);
International Association of Judges The Universal Charter of the Judge (1999); LAWASIA Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA Region (1997).
2
s 18, Oaths and Declarations Act 1957.3
to decide cases impartially, but also if they appear not to decide cases impartially. That is why
judicial independence is protected in a risk-averse fashion, and underpins the statement that “...
justice should not only be done, but should manifestly and undoubtedly be seen to be done.” 3
Independence, however, does not mean that Judges are beyond control and can do as they please.
The former Chief Justice of the High Court of Australia, Sir Murray Gleeson, explains that
uncontrolled power is unacceptable in a modern democracy. All power, including that of Judges,
should be responsible and responsive to the community. Thus, Judges must be accountable. Judicial
independence determines the form, not the presence of accountability. 4 The two are
complementary concepts.
The idea of “accountability” has traditionally been understood in the context of a relationship
whereby one actor is subordinate to a superior. The subordinate actor must account to their
superior for their actions and omissions, in respect of which the superior has authority to impose
reward or sanction as appropriate. The paradigm reward and sanction, respectively financial
incentives and demand for resignation, are obviously inconsistent with judicial independence. 5 Their
imposition would make Judges subordinate to the executive and compromise impartiality. Justice
Jack Beatson of the High Court of England and Wales puts it thus: 6
Neither individual judges nor the judiciary as a body should be subject to forms of accountability
prejudicing their core responsibility as the branch of the state responsible for providing the fair
and impartial resolution of disputes between citizens, and between citizens and the state in
accordance with the prevailing rules of statutory and common law.”
The question of what forms of accountability should apply to the judiciary can be answered with
reference to the purpose of holding Judges to account: to ensure that the public confidence in the
courts as independent and neutral arbiters of disputes is not misplaced. This being so, Judges are
accountable by conducting their judicial role in the public eye. Apart from a few specified
exceptions, courts are open to the public and the media. Judges must give reasons for all of their
decisions, and these must be accessible by the public. The public is free to scrutinise and voice their
agreement or disagreement. Legal academics are free to dissect and critique the reasoning of each
Judge. A wrong decision can be corrected on appeal or review. Allegations of judicial misconduct
can be submitted to the Judicial Conduct Commissioner for investigation. Former Chief Justice of
New South Wales, Sir James Spigelman, explains the combined effect of these mechanisms: 7
3
R v Sussex Justices, ex party McCarthy [1924] 1 KB 256 (KB) at 259.
4
Murray Gleeson “Judicial Accountability” (1995) 2 The Judicial Review 117 at 119-120.
5
Andrew Le Sueur “Developing Mechanisms for Judicial Accountability in the UK” (2004) 24 Legal Studies 73 at
73-74.
6
Jack Beatson ‘Judicial Independence and Accountability: Pressures and Opportunities” (2008) 9 The Judicial
Review 1 at 12.
7
Justice J J Spigelman, Chief Justice of New South Wales “Seen to be Done: The Principle of Open Justice”
st
(keynote address to the 31 Australian Legal Convention, Canberra, 9 October 1999).4
The principle of open justice, in its various manifestations, is the basic mechanism of ensuring
judicial accountability. The cumulative effect of the requirements ... is the way the judiciary is
held accountable to the public.
Conducting the function of judging in the public eye allows the public to satisfy themselves that this
function is being performed to an acceptable standard. The mere knowledge that one’s decisions
will be open to public scrutiny tends to encourage high level decision making. As Justice Gleeson
notes, because judges are unique amongst decision makers in that they are compelled to give public
reasons for every decision they make, this is an extremely powerful form of accountability. 8 Civil law
countries in Europe have significantly more developed mechanisms for promulgating information
about judicial decisions to the public, to the extent that in some nations, quality control mechanisms
and review of substantive judicial decisions have been adopted as a matter of routine. These are
usually in response to specific constitutional developments or in some cases, a loss of public
confidence in the courts.9 These strong forms of accountability, and accompanying performance
assessment mechanisms, are not aspired to for the New Zealand courts.
The explanatory form of accountability appropriate for common law nations does no offence to
judicial independence, as it involves no direct punitive or incentivising consequences for the
individual Judge that might affect their impartiality. This is not, however, accountability without
teeth; though Judges cannot be held directly accountable to the public in the sense that they can be
removed from office, the public may at any time lose their confidence in the courts as a legitimate
institution. In a plea to judges to “speak as clearly as possible to the public”, Lord Neuberger
recently observed: 10
... a clearly reasoned judgment enables the public to understand the law and to see what is being
done and said by the judges in the courts, to see how justice is being dispensed. Accordingly
publically pronounced judgments represent an important means through which public
confidence in, and understanding of, the courts, and therefore in the rule of law, can be secured.
This form of accountability has long applied to decisions that Judges make on the bench. There is,
however, a growing appreciation that the work of Judges extends beyond the courtroom. This has
necessitated consideration of how Judges, and the judiciary as a whole, should be accountable for
these wider functions.
8
Gleeson, above n 4 at 122. Quoted with approval in Spigelman, above n 7.
9
Slovenia is a particular example of the latter, where in response to a loss of public confidence Judges are now
subject to strict performance requirements which are directly tied to their career progression and salary. For a
recent overview of various forms of European judicial quality assessment systems, see Philip M Langbroek (ed)
Quality Management in Courts and in the Judicial Organisations in 8 Council of Europe Member States: A
Qualitative Inventory to Hypothesise Factors for Success or Failure (2010) CEPEJ 3.
10
Lord Neuberger “No Judgment – No Justice” (First Annual BAILII Lecture, 20 November 2012) at [11] and
[13]. See also Flannery v Halifex Estate Agencies Ltd [2000] 1 WLR 377 (CA) at 381, confirming that the duty to
give reasons is a function of due process which is necessary to explain to the losing party why they lost, and
also raises the quality of reasoning.5
2. Accountability of the Judiciary as an Institution
Writing in 1998, then-Chief District Court Judge Ronald Young observed that the fiction that Judges
sat in court and decided cases, and nothing more, had been dispelled. Judges had a vital interest in
the administration of the courts, and best served the public by taking an active interest in how
courts were run. 11 The idea, echoed by Australian Heads of Bench and the Australian Institute of
Judicial Administration, 12 was that Judges should take some responsibility, and thus be accountable
for wider standards of judicial professionalism and efficiency. New approaches to public
management and increasing volume and complexity of litigation have brought the efficiency with
which Judges resolve cases under scrutiny. 13 Increased attention is now being paid to the
accountability, not of individual judges, but of the judiciary as a well organised and trained
institution.
Cross-jurisdictional comparison in this area is difficult, as different jurisdictions feature different
division of responsibility between the judiciary and the executive for the administration of the
courts.14 In New Zealand, the division is highly traditional. The Ministry of Justice has full
responsibility for court registry functions, counter services, upkeep of courthouses, scheduling of
cases to Judges, staffing structures and the supply of support services to the judiciary. 15 The judiciary
has no responsibility, and therefore no accountability, in respect of these tasks.
In New Zealand the judiciary has relatively little administrative control over the wider courts and no
independent financial or budgetary control. This means that the judiciary relies heavily on the
executive to provide an adequate level of administrative support, facilities and infrastructure within
11
Ronald Young “Judicial Independence and Accountability in New Zealand” (1998) 45 Federal Lawyer 40 at 47.
12
See generally Spigelman, above n 7; Justice J J Spigelman, Chief Justice of New South Wales “Judicial
th
Accountability and Performance Indicators” (paper presented to the 1701 Conference: The 300 Anniversary
of the Act of Settlement, Vancouver, 10 May 2001); Gleeson, above n 1; Gleeson, above n 4; Keith Mason
“Impartial, Informed and Independent” (2005) 7 The Judicial Review 121. The Australian Institute of Judicial
Studies has several papers on the topic available at http://www.aija.org.au/.
13
Susan Denham “The Diamond in a Democracy: An Independent, Accountable Judiciary” (2001) 5 The Judicial
Review 31 at 38.
14
Chief Justice Gleeson noted in North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 206 ALR 315
(HCA) at [3]: “Within the Australian judiciary, there are substantial differences in arrangements concerning the
appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing
with complaints against judicial officers, and court administration. All those arrangement are relevant to
independence. The differences exist because there is no single ideal model of judicial; independence, personal
or institutional.”
15
See http://www.justice.govt.nz/about-the-ministry/what-we-do (last accessed 29 January 2013).6
which to conduct their public function.16 If this level of support is not forthcoming, discharge of the
judicial function in an orderly, timely and efficient manner becomes difficult, with little ability to
remedy due to the lack of control. For example, the desire of Judges to resolve disputes is frustrated
if the executive cannot provide sufficient numbers of courtrooms, or court staff for those
courtrooms, for those disputes to be heard. A lack of support raises issues for accountability and
public confidence. In the context of substantive judicial decisions, a current issue is how District
Court Judges can be accountable, and public confidence maintained, when the Ministry of Justice
cannot spare staff to support the publication of District Court judgments. The lack of public access
poses a major accountability issue. The same accountability issues arise where the judiciary is
inadequately supported in its organisational and administrative function. The lack of public
understanding about the degree to which the judiciary rely on executive support creates further
risks to public confidence in the judiciary when delays are caused by limited infrastructure and
funding.
Consistent with judicial independence but subject to appropriate funding support, Judges have full
control over their own training, education, organisation of workloads, rostering to sit in particular
courts and jurisdictions at particular times, case management, timeframes for delivery of decisions,
court hours, and personal staff (though those staff are employed by the Ministry of Justice). These
matters of “judicial administration” are, in the case of the District Courts, officially the responsibility
of the Chief District Court Judge as set out in s 9 of the District Courts Act 1947 (our emphasis):
9 Assignment and rostering of District Court Judges
(1) The Chief District Court Judge shall be responsible for ensuring the orderly and expeditious
discharge of the business of District Courts throughout New Zealand, and accordingly may
... give all such directions as are contemplated by subjection (2).
(2) Each Judge shall sit in such jurisdictions at such times as the Chief District Court Judge may
from time to time direct.
The italicised phrase encompasses the above matters of judicial administration. The relationship
between a Head of Bench and other Judges is somewhat delicate, as judicial independence requires
judges to perform their adjudicative function free from the influence of other judges. A Head of
Bench has no inherent ability to discipline Judges in respect of their decisions, beyond any specific
provision made in legislation or informal internal processes. 17 For example, the judicial complaints
process in New Zealand is governed by the Judicial Conduct Commissioner and Judicial Conduct
Panel Act 2004. All complaints about Judges are directed to the Judicial Conduct Commissioner, who
conducts a preliminary assessment. The Commissioner may dismiss the complaint, refer the
complaint to the Head of Bench if the complaint has substance but does not justify the removal of a
Judge, or recommend that a Judicial Conduct Panel be appointed to inquire into complaints which
may require removal of a Judge. Where a complaint is referred to a Head of Bench, the Head of
Bench can only deal with the complaint through internal measures that are voluntarily adhered to,
16
The Ministry of Justice recognises the importance of judicial independence, the need to provide adequate
support to the judiciary and the lack of ability to direct staff who exercise judicial functions. See Ministry of
Justice Annual Report: 1 July 2011 – 30 June 2012 (E.64, 2012) at 4.
17
Gleeson, above n 1.7
given judicial independence. The Head of Bench is not given any specific authority under the Act to
administer penalties. If a Judicial Conduct Panel is appointed, the Head of Bench may or may not be
a member, depending on which Judges the Attorney-General appoints. Thus, the role of the Head of
Bench to informally investigate and address complaints is recognised in legislation, but no specific
powers are conferred to do so.18
The concept of internal independence from other Judges does not, however, apply to the
administrative aspects of the judicial role. Supervision and leadership is needed over the rostering
of Judges and matters of judicial organisation in order to promote the expeditious delivery of a high
quality of justice. The Head of Bench fulfils this role, though the line between the judicial
administrative and adjudicative functions is often difficult to draw. 19
The Canadian Federal Court of Appeal has expressly set out the obligations of a Head of Bench in
relation to judicial administration (our emphasis): 20
In my judgment, a chief justice cannot entirely disinterest himself or herself from the pace of
progress and the timeliness of disposition of the cases the Court has to deal with. He or she has a
responsibility to ensure that the Court provides “timely justice”. Indeed, it is his or her duty to
take an active and supervisory role in this respect.
A Head of Bench takes on the bulk of judicial administrative functions out of necessity, to enable
Judges to focus on their case loads. 21 But while a Head of Bench has the function of oversight, the
Head of Bench is not a manager or superior in the sense that they can call other judges to account.
For the judicial administration to be effective, every Judge must take a share in the responsibility for
the judicial administration of the court. Following significant reforms occasioned by the passing of
Constitutional Reform Act 2005 (UK), the Judiciary for England and Wales, in a public document
explaining in what ways the judiciary is accountable, expressly accepted that the responsibilities of
the Lord Chief Justice as head of the judiciary have equivalents applicable to the judiciary as a
whole: 22
18
Complaints from the public informally sent directly to a Head of Bench are dealt with in the same way
informal way. Other common law jurisdictions essentially work the same way, though they may lack the
intervening step of a Judicial Conduct Commissioner (as in Victoria), or have an equivalent Judicial Commission
(as in New South Wales).
19
Shimon Shetreet “The Challenge of Judicial Independence in the Twenty-First Century” (2000) 8 Asia Pacific
Law Review 153 at 157-158.
20 th
Canada (Minister of Citizenship and Immigration) v Tobiass (1997) 142 DLR (4 ) 270 (Federal Court of
Canada at 282-283 per Marceau JA. Cited with approval by Chief Justice Spigelman in Bruce v Cole (1998) 45
NSWLR 163 (NSWCA) at 195-196.
21
Mason, above n 12 at 130.
22
Judiciary of England and Wales “The Accountability of the Judiciary” (2007) at 4. The Lord Chief Justice’s
responsibilities as head of the judiciary are to represent the views of the Judiciary to Parliament, the Lord
Chancellor and the Ministers of the Crown; maintain the appropriate arrangements for the welfare, training
and guidance of the judiciary within the resources made available by the Lord Chancellor; and maintain8
Within the resources provided ... the responsibility of the Lord Chief Justice for deployment of
individual judges, the allocation of work within the courts, and the well-being, training and
guidance of serving (full and part-time) judges, mean that the judiciary is responsible for:-
i. An effective judicial system, including the correction of errors;
ii. Training judges in the light of changes in law and practice; and
iii. Identifying and dealing with pastoral, equality, and health and safety issues concerning
serving judges.
By taking on these responsibilities at an institutional level, the Judiciary for England and Wales have
made themselves accountable for the delivery of those responsibilities.
As an institution, the judiciary must be as independent in their administration as individual Judges
are when making decisions in court. This is inherent in the separation of powers. If the judiciary
were not independent in the management of their administrative tasks, outside interference would
inevitably impact on the impartiality of individual Judges in the courtroom, whether in fact or in
appearance. 23 For example, public confidence in the impartial delivery of justice would be lost if the
executive had involvement in assigning Judges to cases, particularly where a government
department was involved.
Conversely however, the administrative decisions that Judges make regarding rostering and case
management have a very real impact on access to and the efficiency of justice, which is inherently a
political matter. 24 Thus the English Judiciary has recognised that it is appropriate for them to be
subject to some form of accountability in respect of these decisions. 25
The form of accountability should depend upon the objective: to ensure that the public confidence
in the judiciary as a well organised, professional, efficient, and independent institution is not
misplaced. Just as the maintenance of public confidence can be maintained in respect of individual
judicial decisions by making those decisions in public, so can public confidence in the administrative
aspects of the judiciary be maintained by making details available to the public. Chief Justice
Gleeson observes: 26
The best practical solution to the problem lies in the recognition, by the judiciary, of the right of
the legislature, and the executive, and the public, to know what administrative decisions are
being taken by the judiciary, and why. Judges have traditionally accepted that the corollary of
their adjudicative independence is an obligation to make their decisions openly and with full
reasons. The same reasoning must apply to their administrative independence.
appropriate arrangements for the deployment of the judiciary and the allocation of work within courts. See s
7, Constitutional Reform Act 2005 (UK).
23
Shetreet, above n 19 at 156.
24
Gleeson, above n 4 at 135.
25
Judiciary of England and Wales, above n 22 at 8.
26
Gleeson, above n 4 at 135.9
The English Judiciary has taken voluntary steps to make significant amounts of information about its
own function, limits and internal organisation available to the public. 27 A major initiative has been
the judiciary’s own website www.judiciary.gov.uk which aims to increase the public’s understanding
of the judicial role and constitutional position. It contains the statement on judicial accountability
already referred to, as well as important decisions, updates on the work of the Judicial Office,
practice directions, protocols, and reports from Judges tasked with reviewing aspects of the
administration of justice. More detailed qualitative and statistical data on the performance of the
judiciary is contained in an annual report prepared by the Lord Chief Justice. This report contains
detail on delays, workloads, training, appeals, conduct issues, and other administrative matters that
are within the responsibility of the judiciary.
Annual reports are a feature of other jurisdictions. All courts in the Australian states of Victoria and
Queensland, and the Supreme Court of South Australia, submit and publish annual reports to the
relevant Minister or Attorney General in accordance with legislative requirements. Courts in New
South Wales and Western Australia 28 publish annual reviews of their own volition, without any
legislative requirement. 29 In Canada, legislative requirements for reporting are present in British
Columbia, Manitoba, Ontario, and the Alberta Court of Queen’s Bench. In some instances, the
legislative requirements set out specific matters for the annual report to include which relate to
judicial administration. 30 In Singapore, both the Subordinate Courts and the Supreme Court publish
annual reports. These contain an abundance of information on the judiciary and statistics on court
performance, due to the judiciary in that jurisdiction having wide responsibility for court
administration.
These practices offer explanatory accountability for the various matters that the judiciary is
responsible for. Exposing these matters to public comment and scrutiny provides an incentive for
the judiciary to develop appropriate and effective management, leadership and training practices, in
the same way that exposing individual judicial decisions to public comment raises the quality of
those decisions. This is as applicable to the New Zealand District Court bench as it is to the English
judiciary, given the responsibilities flowing from s 9. The need to develop modern administrative
systems and communicate these to the public, to an appropriate extent, has become more pressing
in light of recent media attention on the functioning and efficiency of the courts, 31 and
27
See generally Beatson, above n 6 at 13-15.
28
Except the Magistrates Court of Western Australia.
29
Notably these use a different nomenclature of “annual review”, likely because there is no authority that the
judiciary is “reporting” to.
30
For example, section 11.2(2) of the Provincial Court Act (Manitoba) requires the annual report to include
numbers of cases, availability of trial dates, unused public funds from unused judicial vacation leave or
retirement allowances, the effective utilisation of courtrooms, and any other information, including statistical
information, concerning the operation, functioning and administration of the court.
31
For example, Bevan Hurley “Judge attacks delays and throws out drink case” The New Zealand Herald (online
ed, Auckland, 4 November 2012); Bevan Hurley “Courts in ‘crisis’ as trials delayed” The New Zealand Herald10
recommendations from the Law Commission for formal reporting requirements being placed on the
judiciary. 32 It is necessary to respond to these developments in order to maintain public confidence
in New Zealand today.
There is an obvious tension between the acknowledgement of the need for and existence of this
principle in a modern democracy, and its practical implementation in the context of the New
Zealand District Courts. Because the judiciary relies on the executive for support, the performance
of the judiciary is inextricably linked to the degree, extent and quality of that support. Inadequate
support not only has a direct impact on performance, but also limits the means by which the
judiciary can unilaterally organise and deploy themselves to enhance their performance.
3. Maintaining Public Confidence in the Judiciary in 2013
The need for public confidence in the administrative functions of the judiciary has become more
significant over time. Although judicial independence is an important factor, other important factors
include procedural fairness, efficiency, accessibility and professionalism. These factors have a fluid
relationship. At any one time they may complement each other or conflict, or one may be a
precondition for or consequence of another. 33 These other factors must be given proper regard in
order for judicial independence to be of any worth or value to the public. As Justice Nicholson
explains (our emphasis): 34
The quality of independence given to the judicial branch is unique in the political spectrum and in
turn requires of the branch that it be accountable in the sense that it perform its functions
efficiently. A judicial branch which is (for example) years behind in disposal of its caseload may
be independent but it has no political relevance. The quality of independence ceases to matter to
citizens if they cannot have it applied in prompt resolution of their disputes. The principle of
judicial independence requires of the judicial branch that it be efficient in the dispatch of its
business for without efficiency the preservation of public confidence necessary to the existence of
the principle will not occur. Public confidence is diminished by delay in the administration of
35
justice.
Public confidence in Judges and in the judiciary now requires more than simply satisfaction with the
independence of the judiciary. The judiciary must, as an arm of government, adapt and respond to
(online ed, Auckland, 21 October 2012); David Fisher “Judges respond to critics” The New Zealand Herald
(online ed, Auckland, 27 October 2012).
32
See Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at 85-
88.
33
Shetreet, above n 19 at 154.
34
R D Nicholson “Judicial Independence and Accountability: Can They Co-exist?” (1993) 67 ALJ 404 at 424.
35
Gallagher v Durack (1983) 152 CLR 238 (HCA) at 243.11
changing demands of the public in an era of unprecedented access to and expectation of
information. More than a decade ago, Justice Susan Denham explained: 36
There has been accelerating change and development in our societies. The members of the
community are educated. Information and communication technologies are driving modern life.
Society is transforming and with it the democratic institutions. All institutions are subject to
scrutiny. The checks and balances between the people and the institutions of state have been
affected by rapid growth and development. In modern society the people and institutions are
relating to each other in changing ways. It is of immense importance to society that the
independence of the judiciary be protected, whist at the same time having a modern,
accountable judiciary.
Similarly, former Chief District Court Judge Ronald Young observes (our emphasis): 37
If public confidence in the judiciary was ever based on an ignorance of the judicial system, it can
be no longer. We live in an age when it has become the norm to question those in authority.
Perhaps what is occurring in New Zealand is a juncture in the natural progression from
unquestioned acceptance to confidence based on understanding. Right now there is still a lack of
understanding.
If the legitimacy of the judiciary is be maintained, the judiciary must have the confidence of the
public. This public confidence can only be maintained with the provision of appropriate information
that the judiciary is, not just independent, but effective, efficient, and well administered. Public
confidence does not manifest itself in the public agreeing with every individual judicial decision, but
in the underlying belief in the legitimacy and integrity of the system. Chief Justice Gleeson explains
(our emphasis): 38
Confidence in the judiciary does not require a belief that all judicial decisions are wise, or all
judicial behaviour impeccable, any more than confidence in representative democracy requires a
belief that all politicians are enlightened and concerned for the public welfare. What it requires,
however, is a satisfaction that the justice system is based upon values of independence,
impartiality, integrity, and professionalism, and that, within the limits of ordinary human frailty,
the system pursues those values faithfully.
To reiterate, public confidence is the only source of authority for the judiciary. Without that
confidence, the ability of the courts to perform their role, resolve disputes and keep the other
branches of government in check is seriously compromised. 39 It is therefore imperative that the
judiciary provide what is required in order to maintain that confidence. Expectations of the public
have developed to where information on the judiciary’s administrative functions is required to
maintain public confidence. This should not be resisted, but seen as part of a natural development
36
Denham, above n 13 at 31.
37
Young, above n 11 at 47.
38
Gleeson, above n 1.
39
Susan Kenny “Maintaining Public Confidence in the Judiciary: A Precarious Equilibrium” (1999) 25 Monash
University Law Review 209 at 214.12
of the relationship between the judiciary and the public. As Justice Keith Mason notes, recent
developments in judicial education, studies of sentencing practices, and annual reports by the courts
would have been unthinkable a generation ago, but are now routine. 40 The initiatives being
proposed for the performance management of the judiciary will in the future be regarded similarly.
The development of initiatives such as a Judicial Strategy Plan, performance indicators and
formalised peer review mechanisms within the New Zealand District Court bench can only enhance
the administration and delivery of justice overall. While this has benefit in itself, communication of
these initiatives to the public, to the appropriate extent, will provide material on which the public
can satisfy itself that its confidence in the judiciary is not misplaced. Taking the initiative to develop
and disseminate these mechanisms is demonstrative of the explanatory accountability that is now
expected of the judiciary as an institution.
The second half of this paper sets out, at an introductory stage, a proposed set of areas in which the
performance of the judiciary as a whole can be assessed in fulfilment of the judiciary’s
administrative accountability to the public.
II. A Minimum Set of Assessment Areas for a Common Law Judiciary
1. Background and Principles
Ten areas are proposed which might be appropriate to include in a framework for assessing the
performance of the judiciary. They do not necessarily cover comprehensively all aspects of the
judicial function, nor are they intended to. Rather, they reflect our current view that these are
aspects on which the public confidence rests the most. Future iterations of the assessment
framework would have the opportunity to expand and build upon these foundations.
The assessment areas have been selected following a review of the more extensive quality
management systems developed in Europe. Given the different constitutional, institutional and
social context, we do not believe it is easy to adapt a European assessment scheme to a common
law system. An assessment framework must be built in each jurisdiction from the ground up, as the
form and content of the assessment will be influenced by who is conducting it, and what its primary
use and goals are.
It is therefore necessary to set out principles which will underpin any judicial performance
assessment framework. These will strike the necessary balance between judicial independence
(both substantively and administratively), and the need for accountability to foster public
confidence. Whilst these principles should apply to the judiciary of all common law jurisdictions, we
have developed them with particular reference to the nature and extent of the District Courts of
New Zealand. The District Courts are the primary court of first instance, and have perhaps the
widest jurisdiction of any first instance court in the world. The Courts’ 133 Judges travel to sit in
40
Mason, above n 12 at 132.13
separate locations across the length and breadth of the country. Over 95% of criminal proceedings
are heard in the District Courts. This includes the capacity for jury trials and jurisdiction over all but
the most serious offences. The Courts’ civil jurisdiction extends to most matters of contract and tort
up to $200,000. The Family Courts, which are division of the District Courts, have primary
jurisdiction for most matters of family law under over a dozen pieces of legislation. The Youth
Courts similarly have jurisdiction over offending by young persons.
Due to the District Courts’ wide jurisdiction, it is the primary, and for many the only point of contact
between the public and the formal justice system. The District Courts and District Court Judges are
therefore highly influential on the public’s perception of the courts and the wider justice system,
while simultaneously facing a workload of considerable size. This heightens the need for efficient
organisation and accountability at an institutional level.
1. Measurement of judicial performance must be conducted so as not to impact on judicial
independence. Measurement of judicial performance should be developed and undertaken solely by
the judiciary. It will be the responsibility of the Head of Bench’s office to define the goals and
standards to be reached, and to carry out the assessment.
It is constitutionally inappropriate for the executive to be involved in an assessment framework
which may involve setting goals or targets for Judges, or to put itself in a position where it may
appear that Judges are accountable to the executive. This would transgress judicial independence.
As noted, interference with the independence of the judiciary at an institutional level can impact on
the independence, in fact or appearance, of individual Judges when they make decisions in the
courtroom.41
It is appropriate for the Head of Bench to take responsibility for developing the framework, as they
are given responsibility for ensuring the orderly and expeditious discharge of court business and play
a primary role in judicial administration. A Head of Bench will also have a robust understanding of
the often conflicting values of justice and efficiency, and so be able to set goals and standards which
balance these two values.42 The experience in Europe has generally been a greater degree of
success when performance assessment schemes have been developed and implemented by Judges
themselves. 43
2. Measurement of judicial performance should measure the judiciary as a whole, not individual
judges. Where it is necessary to aggregate individual judicial performance, the performance of
individual Judges should be anonymised. Results will not rank or compare the performance of
individual Judges.
41
Shetreet, above n 19 at 156.
42
Gleeson, above n 4 notes that a characteristic of open justice is inefficiency. Judges could handle far larger
volumes of cases if they were not constrained by the need to give publish reasons and requirements of
procedural fairness. Too much drive towards efficiency risks compromising these fundamental safeguards.
43
See generally Richard Mohr and Francesco Contini “Judicial Evaluation in Context: Principles, Practices and
Promise in Nine European Countries” (2007) 1 European Journal of Legal Studies 2.14
Because performance assessment is not being proposed for the purpose of salary or career
progression, as in some European states, nor for informing voters in situations where Judges are
elected by popular vote, as in some areas of the United States 44, the need for performance
assessment at the level of an individual Judge is not present. The public confidence in individual
Judges is maintained by the delivery of reasoned decisions by Judges in open court. These
performance measures are designed to maintain the public confidence in the judiciary as an
institution, and so must be directed at the institution.
This does not preclude measures designed to improve the performance and skills of individual
judges. Peer review is a paradigmatic example. However, due to the need for individual Judges to
be independent of each other, this is an area in which some caution must be exercised.
3. Measurement of judicial performance will not address the reasoning or decision of any Judge in
any case.
This is a direct and obvious consequence of judicial independence. It is unlikely that an assessment
scheme would reveal any data or results which would bring a Judge’s reasoning into question. This
does not however preclude general initiatives around judicial training and education, which are
necessary to preserve public confidence.
4. Measurement of judicial performance will be used by the Head of Bench to assist in making
administrative decisions about the allocation and education of the judicial resource and in
negotiations with the executive department responsible for courts. It will not be used for the purpose
of sanction, individual performance evaluation or career promotion.
This is the converse of Principle 2. Inappropriate use of the information gathered can impact upon
judicial independence and impartiality. Furthermore, the proposed use of performance
measurement is distinct in kind from that used in the public sector, were individual public servants
are assessed and are directly accountable to superiors. It is important to clearly delineate the
appropriate and inappropriate uses of performance measurement of the judiciary as an institution,
to avoid misconception and confusion.
5. Measurement of judicial performance should be based on purely judicial tasks. It should not be
skewed by the performance of the court administration, participants in the court process or litigants.
This principle derives from the proposition that one should only be accountable for that which they
are responsible. In New Zealand, it is not the responsibility of the judiciary to provide sufficient
courthouses, courtrooms, and court staff to meet demand. The Ministry of Justice has responsibility
for the provision of these, and correspondingly must be accountable for it. The judiciary cannot
have their performance measured in respect of things which they cannot control. In some instances,
neither the judiciary nor the executive have any control over the actions of others involved in the
justice process, particularly the parties, counsel and witnesses. The performance of Judges is also
44
See American Bar Association resources for measuring judicial performance at
http://www.americanbar.org/groups/judicial/conferences/lawyers_conference/resources/judicial_performanc
e_resources.html.15
affected by wider changes in society, the legislative environment and government policy that can
have an impact on caseloads and public expectations. 45
The judiciary and the executive both have an interest in, and make decisions affecting, the efficiency
of the justice process. This is complicated by the fact that the judiciary relies on the executive for
administrative and infrastructural support. Isolating aspects of the justice process which are purely
judicial tasks is thus an undertaking of some complexity.
This focus distinguishes the present project, which is distinctly concerned with performance
measures for the judiciary, from systems which incorporate “court performance indicators” and
focus on either the court administration specifically, or the court administration and the judges as a
combined subject.
6. Measurement of judicial performance should be made available to the public, to an appropriate
extent.
This is a direct consequence of the judiciary’s accountability to the public in respect of judicial
administrative matters. Public confidence can only be maintained through transparency. It is
therefore important that information about the performance of the judiciary be made public. The
amount of information appropriate to be released will be tempered by other considerations and
values, including the need for the judiciary to stay independent and appear impartial, and the safety
and security of individual Judges. Principles 2 and 3 will also limit what information is made public.
7. Measurement of judicial performance will only be conducted using data of a high quality and high
degree of accuracy.
Inaccurate data will lead to inaccurate conclusions about performance. Public confidence will be lost
if information about the performance of the judiciary is found to be inaccurate or misleading. A
difficulty is that as a consequence of not being responsible for the administrative side of the courts,
the judiciary does not always have ready access to the necessary information. This is another area in
which the judiciary relies on the executive for support.
8. The judicial assessment scheme will be regularly reviewed and updated to ensure that it delivers
the necessary information with a high degree of accuracy, while ensuring that these principles of
operation are adhered to.
This is necessary to ensure that the assessment scheme develops to meet the changing expectations
of accountability over time. One of the primary objections to use of performance measurement in
the judicial context is that many judicial functions cannot be quantified, and that quantifiable data
will inevitably be given more weight over qualitative data because it appears to be more reliable and
certain. 46 An inbuilt review mechanism would address these concerns. 47
45
Pim Albers “Performance Indicators and Evaluation for Judges and Courts”
http://www.coe.int/t/dghl/cooperation/cepej/events/onenparle/MoscowPA250507_en.pdf at 2-3.
46
See generally Spigelman, above n 12 at 18-19.16
2. Proposed Assessment Areas
The discussion at this stage of the development of the assessment framework is focussed on the
question of “what should be assessed”. The discussion at this point is not directed at the question of
“how will these areas be assessed”. While we are inclined towards a multi-pronged approach that
encompasses statistical reports, formalised peer review and audits, the mechanics of how the
assessment will take place is an issue to be dealt with at a future time. At present, the question is
whether, in principle, the following areas of judicial activity are appropriate for assessment.
Whether they can, in practice, be assessed is a distinct and deferred inquiry. 48
We consider that all of these areas are in principle appropriate for assessment. This is because every
one of these areas is, in some way, related to the efficiency, organisation and professionalism of the
judiciary. These are thus the matters in which the public has an interest and on which it must have
confidence in the judiciary as an institution. Therefore, these are the administrative matters in
respect of which the judiciary is accountable as an institution to the public. This provides the
impetus towards transparency and access to information about these practices.
However, we recognise that there may be concerns that assessment of these practices might impact
on other values underpinning the judiciary. If, for example, any assessment area inherently
impinges on judicial independence, either as an institution or internally between individual Judges,
then in principle it would not be appropriate to assess that area of activity. Likewise, assessments in
areas which would impinge on the impartiality of Judges, whether in actuality or in appearance,
cannot in principle be accepted. The principles set out in the preceding section will inform whether
any of these other values would be unacceptably transgressed.
It is vital that a judicial sounding on these areas of assessment be taken, because without sufficient
support and “buy in” from the subjects of the assessment, the assessment scheme is more likely to
fail. 49 However, we are of the opinion that assessment of an area of judicial activity is not
47
These concerns are unlikely to arise due to the effect of the other principles, particularly the exclusion of
executive involvement. It is unlikely that a Head of Bench would overemphasise efficiency over justice when
they are not subject to the same direct, sacrificial forms of accountability that public servants are. As these
performance indicators are not proposed to be used in the pursuit of free market ideals such as competition or
remuneration, quantification is more likely to be kept to its appropriate level of influence.
48
There is, admittedly, some crossover between these inquiries, which is reflected in the form of the
assessment areas. Each of the areas proposed is framed as a tangible activity rather than an intangible
concept. We do not propose to assess or measure abstract concepts such as “impartiality” or “independence”,
directly. The practical difficulty and degree of subjectivity implicit in any attempt to measure such concepts is
so great as to be an objection in principle, because it is highly unlikely that results could have the necessary
objective pedigree to be used by the public for the purpose of maintaining the public confidence.
49
See Francesco Contini and Davide Carnevali “The Quality of Justice in Europe: Conflicts, Dialogue and
Politics” (draft paper for the Research Institute on Judicial Systems, Italian National Research Counsel,
December 2009) at 3.17
inappropriate in principle merely because the release of information would lead to a loss of public
confidence. It is the essence of accountability that activities which are not being performed
efficiently, professionally or to the expected standard are exposed. If the judiciary is not performing
well, then the judiciary must accept the loss of confidence that will result. This will provide incentive
for improving performance, and for increasing the degree and quality of administrative and
infrastructural support provided to the judiciary by the executive.
1. Timeliness of decisions
This relates primarily to the timeliness of delivery of judgments, but would also include efficient
dispatch of work that Judges do in Chambers 50 and other tasks. Save for the absence of corruption,
the efficiency of the justice process is perhaps the most important matter for the public. However,
there are many different parties and persons involved throughout the course of the justice process.
The area for assessment must focus specifically on matters which are particularly within the control
of the judiciary. 51 A Judge cannot be held responsible, and thus accountable, for delays caused
when a witness fails to appear, or when probation has not prepared pre-sentence reports, or when
the Department of Corrections fails to deliver a defendant held in custody to the court on time.
The portion of the justice process which a Judge has the most control over, and which the Judge is
specifically responsible for, is the delivery of final decisions. It is the responsibility of the Judge to
assess the evidence, consider the arguments of counsel, come to a reasoned decision, and deliver
that decision in written or oral form. This is the basis on which individual Judges are accountable to
the public. It is imperative that such decisions be delivered in a timely manner. A lengthy delay
damages the credibility of the Judge and the justice system as a whole. The parties are essentially
left in limbo pending a final decision. This causes frustration, which increases the risk of the decision
not being accepted as final and the institution not being seen as legitimate. Furthermore, from a
purely practical standpoint there is increased risk of error in reasoning when the decision making
process is temporally distant from the hearing.
In recent submissions to the Law Commission, members of the public and the legal profession
expressed consistent dissatisfaction with the time taken for the delivery of judgments reserved by
the judge for further consideration, and called for some accountability to be imposed. The Law
Commission was of the opinion that any statutory time limit on the delivery of judgments would be
inconsistent with judicial independence. However, there was a genuine public interest in the
delivery of decisions within acceptable timeframes, and in transparency as to what decisions were
outstanding. The Law Commission recommended a list of outstanding reserve judgments in all
courts be published on the Courts of New Zealand website.52 Without expressing a view on this
recommendation, we believe that these calls from the public demonstrate a lack of public
confidence in this area. This is therefore an area where performance assessment is appropriate in
principle, and much needed.
50
Commonly known as “box work”.
51
See principle 5 above.
52
Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at 89-90.18 Obviously, the delivery of decisions in a timely manner will be affected by external influences. The two most prominent are the workloads of individual Judges, and the degree of technological and administrative support that Judges have when making their decisions. Delivery of a decision will be delayed if a Judge is not allocated judgment writing time due to the need to sit in court, or if they are sitting in a remote location with a slow intranet connection. Such external influences can be accounted for in the mechanics of the assessment; they do not affect the legitimacy, in principle, of this area being subject to assessment. 2. Statutory timeframes This is closely related to general timeliness of decisions, but has a slightly different emphasis. In some instances, Judges must make decisions within timeframes specified in legislation. Examples include: applications for compulsory treatment orders under the Mental Health (Compulsory Assessment and Treatment) Act 1992, where a Judge must make an examination and determination within 14 days of the application under s 18(2), though this can be extended for up to 1 month under s 15(2); compulsory care orders under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, which also have a 14 day timeframe for determination under s 41(1); and applications for return of a child abducted to New Zealand under s 105 of the Care of Children Act 2004, which under s 107 must be given priority and with an aim to be determined within six weeks. Timeframes for giving decision are only rarely set out in legislation. When they are, it is because delay in delivering a decision would have a detrimental effect either on the ability to determine the application, or on the health or safety of the person who is the subject of the application. It is therefore of vital importance that these areas be closely monitored to ensure that the timeframes are complied with. Systemic failure to adhere to these timeframes could have a significant detrimental effect on public confidence in the judiciary. It is also in this context that any inadequacy in the support provided to the judiciary by the executive, or excessive workloads for Judges, would be most exposed. 3. Punctuality In a busy list court, a delayed start can result in delay for all matters heard that day. It is of vital importance that all court fixtures start on time. Therefore, it is imperative that Judges be in court on time, having done the necessary preparation for the day. This is an aspect of the professionalism of the judiciary on which public confidence rests. It is therefore appropriate that the punctuality of Judges in court should be assessed and reported. Given that a Judge cannot be disciplined for lack of punctuality in the way that an employee can, due to restrictions on removal and independence, transparency of these matters is the only method by which Judges can be held accountable. This will not, of course, guarantee that court sessions will start on time. Other parties involved, such as counsel, witnesses, or probation may not be on time. External factors such as workloads may also affect the degree of preparation that Judges can accomplish prior to a hearing. These issues however go to the mechanics of the assessment, not whether it is appropriate in principle. Development of appropriate measurements and data collection will need to be cognisant of these other factors outside the Judges’ control.
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